EXHIBIT 10.9
CONSULTING CONTRACT
THIS AGREEMENT is dated for reference the 31st day of March 1999 between Lari
Acquisition Company, Inc., a company incorporated under the laws of the State of
California (the "Company") and Xxxxxxx Xxxxxxxxx, a businessman, resident in the
State of California (the "Consultant").
WHEREAS:
(a) A subsidiary of the Company has purchased from the Consultant and other
parties, a funeral cremation business known and operated as the "Neptune
Society" including a pre-need marketing business operated under Neptune
Pre-Need Plan, Inc. (the "Business");
(b) The Consultant is familiar with the Business and has valuable marketing and
finance expertise, experience and abilities which the Company wishes to
avail itself; and
(c) As part of the consideration in purchasing the Business from the
Consultant, and other parties, the Company wishes to use the consulting
services of the Consultant for the Business and the Consultant has agreed
to provide such services, subject to the terms and conditions of this
Agreement.
NOW THEREFORE in consideration of the payment of covenants herein and for other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged) the parties hereto covenant and agree as follows:
Appointment
1. The Company hereby retains and appoints the Consultant, effective the 31st
day of March, 1999 (the "Effective Date"), to provide the following
assistance and advise with respect to the Business:
(a) Activities as a Spokesperson - Consultant will be available on a
reasonable basis, not to exceed seven (7) days per month for meetings
and presentations to potential investors in the Company;
(b) Consulting Services With Respect to Expansion of the Business - Under
the direction of the President of the Company, Consultant will assist
with research, investigation and implementation of business start-ups
in areas where Company does not currently conduct business. Consultant
will also assist in prospecting, investigation and due diligence with
respect to other existing cremation companies in North America which
Company may have an interest in acquiring;
(c) Consulting Services With Respect to Pre-Need Sales - Consultant will
assist in the development and implementation of marketing strategy for
the sale of pre-need agreements throughout North America, including
the identification of target markets, the
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best ways to reach those target markets, the location of new markets
in States outside of California, Florida and New York and the training
of sales personnel in new offices which may be established by Company;
(d) Consulting Services With Respect to Pre-Need Trust Funds - Consultant
will respond to requests from the board of directors of the Company
and the trustees of the pre-need trust funds regarding investment and
strategy and security for the pre-need trust funds in order to ensure
the integrity of the pre-need trust funds, all within the applicable
regulations of the State of California, Florida, New York and any
other State in which Company may establish a pre-need program,
(the "Services").
2. The Company will use its best commercial efforts to facilitate the
Consultant's ability to fulfill the Consultant's obligations under this
Agreement including providing timely responses to the Consultant's
comments, providing Company personnel to assist the Consultant in providing
written communication to the board of directors, diligently assessing the
Consultant's advice and recommendations with respect to the Business and
providing decisions with respect to the advice and recommendations on a
timely basis.
Term
3. Subject to the provisions of paragraphs 17 to 19 of this Agreement, the
Consultant shall provide the Services to the Company in accordance with the
provisions of this Agreement for a period of 36 months commencing on the
Effective Date of this Agreement (the "Term").
Payment
4. Subject to paragraphs 17 and 19 herein, the Company agrees to pay to the
Consultant for the Services an amount of $27,775.00 per month, payable on
the last day of the month with the first payment due on April 30, 1999. The
Consultant acknowledges that such payment is to be full payment and
reimbursement for providing the Services.
Expenses
5. Having first obtained written approval from the Company to incur expenses,
the Consultant shall be reimbursed for all reasonable traveling and other
expenses actually and properly incurred by him in connection with the
Services hereunder, including the reasonable cost of an office, comparable
to the Consultant's existing standard of offices, provided that for all
these approved expenses, the Consultant shall furnish to the Company
statements and vouchers at the end of each month in which the approved
expenses were actually incurred (unless the contrary is agreed upon in
writing by the Company and the Consultant) and
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provided further that the Consultant shall observe any reasonable limits
from time to time fixed by the Company in respect of the approved expenses.
Records
6. In connection with the provisions of the Services, the Consultant shall:
(a) establish and maintain books of account of all expenses incurred; and
(b) maintain invoices, receipts, and vouchers for the expenses referred to
in Section 5 to this Agreement,
(c) and a Company appointed auditor shall have free access at all
reasonable times to these books of account, invoices, receipts and
vouchers for the purposes of copying or auditing them (or both).
Independent Contractor
7. The Consultant shall be an independent contractor and not the partner,
servant, employee or agent of the Company.
8. The Company may from time to time give any instructions to the Consultant
that it considers necessary in connection with the provisions of the
Services but the Consultant shall not be subject to the control of the
Company in respect of the manner in which these instructions are carried
out.
Reports
9. The Consultant shall upon the request, from time to time, of the Company:
(a) fully inform the Company of the work done and to be done by the
Consultant in connection with the provision of the Services; and
(b) permit the Company at all reasonable times to inspect, examine, review
and copy any and all findings, data, specifications, drawings, working
papers, reports, documents, and material whether complete or otherwise
(collective the "Material") that has been produced, received, or
acquired by or provided by the Company to the Consultant as a result
of this Agreement.
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Ownership
10. The Material produced, received, or acquired by the Consultant, or provided
by the Company to the Consultant, as a result of this Agreement and any
equipment, or other property provided by the Company to the Consultant as a
result of this Agreement shall:
(a) be the exclusive property of the Company; and
(b) immediately be delivered by the Consultant to the Company on the
Company giving notice to the Consultant requesting delivery of the
Material, equipment or other property, whether that notice is given
before, upon, or after the expiration (or earlier termination) of this
Agreement and the Consultant shall execute and deliver such
assignments, acknowledgments and waivers as may be reasonably required
by the Company to preserve its interest in the Material, or other
property.
Confidentiality
11. The Consultant shall treat as confidential and shall not without the prior
written consent of the Company publish, release, or disclose or permit to
be published, released, or disclosed either before or after the expiration
or early termination of this Agreement the Material or any information
supplied to, obtained by, or which comes to the knowledge of the Consultant
as a result of this Agreement except insofar as that publication, release,
or disclosure is necessary to enable the Consultant to fulfill his
obligations under this Agreement.
Assignment and Sub-Contracting
12. The Consultant shall not without the prior written consent of the Company:
(a) assign, either directly or indirectly, this Agreement or any right of
the Consultant under this Agreement; or
(b) sub-contract any obligation of the Consultant under this Agreement.
13. No sub-contract entered into by the Consultant shall relieve the Consultant
from any of the obligations under this Agreement or impose any obligation
or liability upon the Company to any sub-contractor.
Conflict
14. The Consultant shall not during the Term perform a service for or provide
advice to any person, firm, or corporation where the performance of that
service or the provision of that advice may or does, in the reasonable
opinion of the Company, give rise to a conflict of
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interest between the obligation of the Consultant to the Company under this
Agreement and the obligations of the Consultant to any other person, firm,
or corporation.
Indemnity
15. The Company will indemnify the Consultant from and against any and all
losses, claims, damages, actions, causes of action, costs and expenses that
may arise from the Consultant providing the Services to the Company
pursuant to the Agreement.
16. The Company will name the Consultant as an additional insured for the
Company's Business at no cost to the Consultant, subject to the Company's
ability to obtain such insurance at premiums comparable to those paid by
the previous owners of the Business.
Termination
17. The Company may terminate this Agreement forthwith, without notice upon any
of the following:
(a) the failure or refusal of the Consultant to provide the Services under
this Agreement as directed by the board of directors of the Company;
(b) any dishonesty on the part of the Consultant affecting the Business or
the Company;
(c) the conviction of the Consultant for an indictable offence or for any
crime involving moral turpitude, fraud or misrepresentation;
(d) excessive use of alcohol or illegal drugs by the Consultant
interfering with the performance of his obligations under this
Agreement;
(e) any willful and intentional act on the part of the Consultant having
the effect of materially injuring the reputation, business or business
relationships of the Business or the Company;
(f) on the death or disability of the Consultant; or
(g) any material breach (not covered by any of the above clauses (a)
through (f)) of any of the provisions of this Agreement.
18. If the Company terminates the Consultant during the Term for a reason set
forth in paragraph 17, the Company shall not owe or be obligated to the
Consultant for any payment other for payments already due and owing for
Services already performed pursuant to this Agreement.
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19. If the Company fails to make payment to the Consultant of moneys owed,
within fifteen (15) business days of the Company's receipt of invoices for
Services rendered, the Consultant may after, providing written notice to
the Company terminate this Agreement only if the Company does not make
payment to the Consultant within thirty (30) days of the Company's receipt
of such notice. In the event of termination under this paragraph 19, all
monies remaining to be paid hereunder shall become immediately due and
payable.
Non-Waiver
20. No provision of this Agreement and no breach by the Consultant of any
provision shall be deemed to have been waived unless the waiver is in
writing signed by the Company.
21. The written waiver by the Company of any breach of any provision of this
Agreement by the Consultant shall not be deemed to be permanent waiver of
the provision or of any subsequent breach of the same or any other
provision of this Agreement.
Non Competition
22. Xxxxxxxxx covenants and agrees with the Company that for a period of 15
years from the Effective Date, save with the prior written consent of the
Company, he will not, either individually or in partnership or conjunction
with any other person or persons, including without limitation any firm,
association, syndicate, company or corporation, as principal, agent,
shareholder, consultant, employee or in any other manner whatsoever carry
on, or be engage in, or concerned with, or advise, lend money to, guarantee
the debts or obligations of, or permit his name to be used in connection
with the provision of funeral, burial and cremation services, including the
provision and sale of pre-need cremation services, in the States of
California, Florida or New York; provided that nothing herein shall
preclude Xxxxxxxxx from being a security holder of a public company, the
securities of which are listed on any public stock exchange or over the
counter market, if the number of securities beneficially held by Xxxxxxxxx,
directly or indirectly, are such that he is not in a position to materially
influence the conduct of its affairs.
23. Notwithstanding the foregoing, if any restriction as to time, area,
capacity or activity imposed on the Consultant by this Agreement is
determined to be unreasonable or unenforceable pursuant to an arbitration
proceeding as contemplated in paragraph 30 herein (the "Restriction"), the
Consultant agrees that upon receiving notice from the Company specifying
inclusion in this Agreement of a lesser time or area, fewer capacities or
activities or lesser scope than now contained herein (the "Lesser
Restriction"), this Agreement will be deemed to be amended by the
substitution of the Lesser Restriction for the Restriction, with the
retroactive effect to the Effective Date.
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24. Xxxxxxxxx acknowledges that the provisions of paragraphs 22 to 27 of this
Agreement have been considered by him and are, with respect to his
interests and the interests of the Company, reasonable as to time, area and
extent, having regard to all circumstances of the transaction contemplated
by this Agreement.
25. The parties to this Agreement acknowledges that a breach by Xxxxxxxxx of
any of the covenants in this paragraph 22 would result in damages to the
Company and the Company would not adequately be compensated for such
damages by monetary award. Accordingly, Xxxxxxxxx agrees that in the event
of such breach, in addition to all other remedies available to the Company
at law or in equity, the Company is, notwithstanding paragraph 30 of this
Agreement, entitled to apply to a court of competent equitable jurisdiction
in the Consultant's domicile, except in the case of a material breach of
this Agreement by the Company, for such relief by way of restraining order,
injunction, decree or otherwise, as may be appropriate to ensure compliance
with the provisions of paragraph 22.
26. The parties agree that paragraphs 22 to 27 of this Agreement are binding
and enforceable and will survive the expiration of the Term or any
termination of this Agreement under paragraph 17 herein.
27. The parties agree that all restrictions in paragraphs 22 to 27 are
necessary and fundamental to the protection of the Business by the
Operating Entities and are reasonable and valid, and all defenses to the
strict enforcement thereof by the Company are hereby waived by Xxxxxxxxx.
Notices
28. Any notice, payment, or any or all Material or other instruments that
either party may be required or may desire to give or deliver to the other
shall be conclusively deemed validly given or delivered to and received by
the addressee, if delivered personally on the date of such personal
delivery or, if mailed, on the third business day after the mailing in
British Columbia, by prepaid post addressed, or if delivered via facsimile
transmission, on the day following the day on which it was sent:
(a) if to the Company:
Lari Corp.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
with a copy to then registered office of the Company;
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(b) if to the Consultant:
Xxxxx & Xxxxxx, LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
29. Either party may, from time to time advise the other, by notice in writing,
of any change of address of the party. From and after the giving of that
notice, the address therein specified shall be deemed to be the address of
the party giving that notice.
General
30. This Agreement shall be governed by and construed in accordance with the
laws of the State of California. Any dispute arising out of or in
connection with this Agreement, including any question regarding its
existence, validity or termination, shall be referred to and finally
resolved by arbitration under the rules of the American Arbitration
Association which rules are deemed to be incorporated by reference into
this clause. The number of arbitrators shall be one and the place of
arbitration shall be Los Angeles, California. The language of the
arbitration shall be English. The parties expressly waive and forego any
right to punitive, exemplary or other similar damages unless an applicable
statute requires the award of such damages or that compensatory damages be
increased in a specified manner. This provision is not intended to apply to
any award of arbitration costs to a party to compensate for dilatory or bad
faith conduct in the arbitration pursuant to this paragraph.
31. Save and except as provided for in paragraph 23 of this Agreement, if any
covenant, obligation or agreement of this Agreement, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement or the application of such
covenant, obligation or agreement to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be
affected thereby and each covenant, obligation and agreement of this
Agreement shall be separately valid and enforceable to the fullest extent
permitted by the law
32. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
33. All currency is in United States of America dollars unless otherwise
specifically stated.
34. The headings appearing in this Agreement have been inserted for reference
and as a matter of convenience and in not way define, limit, or enlarge the
scope of any provision of this Agreement.
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35. Time is of the essence of this Agreement.
36. This Agreement may be executed in any number of counterparts, each of which
when delivered shall be deemed to be an original and all of which together
shall constitute one and the same document. A signed facsimile or
telecopied copy of this Agreement shall be effectual and valid proof of
execution and delivery.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the day and year first above written.
LARI ACQUISITION COMPANY, INC.
Per: /s/ Xxxxxxx X. Xxxx
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Authorized Signatory
SIGNED, SEALED AND DELIVERED by )
XXXXXXX XXXXXXXXX in the presence )
of: )
)
/s/ Xxxxxxx Xxxxxx )
---------------------------------------- )
Witness )
0000 Xxxxxx Xxxx., #000 )
Xxx Xxxxxxx, XX 00000 ) /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------- ) --------------------------------
Address ) XXXXXXX XXXXXXXXX
)
Attorney )
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Occupation )
)
